ADVOCACY:

The most active nonprofit you've never heard of

Emily Yehle, E&E reporter

Greenwire: Wednesday, November 14, 2012

Since it opened its doors 14 months ago, the watchdog group Cause of Action has tackled the Department of Energy's energy efficiency standards, questioned political campaigning by government officials and taken the Food and Drug Administration to task for ordering a man to stop the "manufacture" of his own sperm.

The growing nonprofit could be the busiest advocacy group you've never heard of. Headed by a 29-year-old former congressional staffer, Cause of Action has filed five lawsuits, intervened in several more and launched more than a dozen investigations to make one point: Government overreach is negatively affecting American lives and livelihoods.

"What the American taxpayers need to understand is that everyday people, everyday Americans, are affected by government overreach," Dan Epstein, the group's executive director, said in a recent interview. "They're affected in ways where if we don't start fighting against this, if we don't start educating people about how seemingly benign regulations have consequences that affect yourself, your children, your grandchildren, then essentially we're going to be stuck in our own Orwellian nightmare and think it's utopia."

The group's focus on regulatory overreach has led some news outlets to describe it as right-leaning. Indeed, Epstein gained most of his legal experience as a counsel for Republicans on the House Oversight and Government Reform Committee, both when Rep. Darrell Issa (R-Calif.) was the ranking member and when he became chairman last year.

Dan Epstein is the executive director of new nonprofit Cause of Action. Photo courtesy of Cause of Action.

But Cause of Action's broad agenda can make it difficult to pigeonhole, and despite some interesting reports, it has kept a relatively low profile. Investigations have listed agencies' expenditures on promotional items, revealed that the Chicago Transit Authority possibly overcharged the Department of Transportation millions of dollars, and questioned whether certain groups have used federal grant funds for lobbying.

Its legal cases are similarly varied, with clients that include a lesbian from Oakland, Calif., a heating trade association and a California farmer. Every case is done pro bono, with an eye toward the message rather than the bottom line.

For example, Cause of Action is representing Oregon Windfarms in a lawsuit concerning a Chinese-owned company that hopes to set up wind farms in Oregon. President Obama blocked the project -- in which Oregon Windfarms had a financial interest -- citing national security claims. Cause of Action argues the rare move violated the company's constitutional rights.

On the seemingly other end of the spectrum is the group's lawsuit on behalf of a California woman who wants to start a family with her girlfriend, using free sperm from a man she knows. The FDA does not allow such agreements, barring them under rules for body tissue transfers. But Cause of Action argues such rules are unconstitutional because they regulate "sexually intimate choices."

Such cases have one thing in common, Epstein said: They tell a story of inappropriate government intervention.

"We have something that is a severe amount of regulatory naivete, I call it," Epstein said. "Most Americans, even sophisticated Americans in places like Washington, D.C., don't understand the majority of laws in this country come from regulatory agencies that don't have elected officials running them."

Oversight with 'teeth'

Regulatory overreach has been a staple of the Republican agenda this Congress, with GOP lawmakers in the House holding dozens of hearings on "job-killing" red tape. The House oversight panel has led that charge under Issa -- and Epstein's experience on the panel undoubtedly influences the group.

At 29, Epstein is an unlikely figure to head a Washington nonprofit, with a résumé made up of internships, a stint at the conservative Charles G. Koch Charitable Foundation and three years on the House oversight panel. With a young-looking face -- and an earnest demeanor -- he is used to being asked his age.

Epstein left the panel after being approached by lawyers and others who wanted to start a nonprofit that was essentially an oversight panel with the "teeth" of litigation. Cause of Action was soon born, funded by benefactors Epstein declines to identify other than describing them as "individuals and charities that are committed to economic freedom."

But unlike the House oversight panel -- which has spawned plenty of partisan rhetoric -- Epstein strikes a nuanced note, sounding more like a political scientist than a politician.

In a recent interview, he quoted John Locke and laid out his belief that the executive branch's regulatory power grew out of need in the aftermath of the Great Depression but has now gotten out of control. He describes it as a slow progression of necessary regulations laying the groundwork for agencies to create overreaching ones.

To make that point, Cause of Action chooses cases that tell a "captivating story," Epstein said. That strategy is exemplified in the group's decision to become involved in the controversy over whether the Interior Department should allow a California oyster farm to continue operating in a potential wilderness area.

The debate over the farm has been going on for years, with the National Park Service making several missteps, including a failure to disclose that it had taken close to 300,000 photos of the area where the farm harvests oysters. The agency's draft environmental impact statement on the farm has also suffered near-constant criticism (Greenwire, Nov. 9).

A few weeks ago, Cause of Action decided to challenge the Park Service on behalf of the farm, Drakes Bay Oyster Co. It's a tough case, with no clear resolution, and so far, the Park Service and the Interior Department have largely ignored the group's legal memos.

But Epstein said it is a classic example of government overreach. The case, he said, wouldn't be interesting if the Park Service just "came clean" and announced it wanted the farm out to preserve wilderness; instead, the agency has engaged in a heated back-and-forth that has spawned expensive studies and countless man-hours (Greenwire, Sept. 13).

While Drakes Bay Oyster Co. wants to save its farm, Cause of Action is unabashedly putting public exposure first.

"Our cases are secondary and the clients we select are secondary to our educational mission," Epstein said. "We know we're in a tough game. We know that government regulators are powerful. We know that there's a heuristic bias among most Americans that regulation is good in all circumstances. And we're trying to fight that."

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